Pursuant to the notice published by the Federal Communications Commission
(Commission) on December 14, 2005 seeking comments on a petition for declaratory
ruling filed by the Fax Ban Coalition, the Electronic Privacy Information
Center submit the following comments.[1]

I. Introduction

The Commission should deny the Petitioner's request to preempt California's
and other states' heightened protections against junk faxes. California
established an opt-in, or affirmative consent requirement before junk faxes
are sent to balance the interest of facsimile machine owners against the
senders who inundate machines with unsolicited advertising. Junk faxes
waste resources and annoy owners of fax machines. Many who have purchased
fax machines turn the fax function off, after being repeatedly called by
junk faxers in the middle of the night. Junk faxes are of such annoyance
that the California protections (labeled as "particularly egregious"
by Petitioner) sailed through the State's Democrat-dominated Senate and
Assembly and were signed by a Republican Governor.

Petitioners have not met the burden of showing that Congress acted with
a "clear and manifest purpose"[2] to preempt state laws. In fact, Congress had
no such intent in passing the TCPA. Instead, Congress has repeatedly passed
up the opportunity to explicitly preempt state anti-telemarketing laws,
setting a uniform floor of protections that all Americans enjoy, which may
be supplemented by stronger state laws.

California's heightened protections against junk faxes constitute a democratic
attempt to rein in an advertising practice that sometimes employs channels
of interstate communication. These heightened protections pose no technical
burdens to communications networks. They do not specify new protocols or
other rules that hamper actual communication. Instead, they regulate a
common, obnoxious business practice. Taken literally, Petitioner's argument
would mean that states would have no power to address abusive marketing
practices, so long as they employ interstate channels of communication.
Such an interpretation would give scammers an enormous safe haven from state
consumer protection laws.

Like other state anti-telemarketing laws, heightened junk fax prohibitions
serve the historic state police power to protect individuals from abusive
calling practices. These laws represent innovation in addressing quickly-evolving
business practices and recognize regional needs that may not rise to the
attention of federal regulators.

Americans owe the highly successful Telemarketing Do-Not-Call Registry
to such state innovation. The Do-Not-Call Registry is just one example
of many consumer privacy protections developed by state legislatures that
are later adopted at the federal level by Congress or an administrative
agency. Consumers will continue to be served best by a dual regulation
system that allows state responses to marketing practices.

Overall, the Petitioner conflates Congress' interest in providing blanket
protection against telemarketing practices for all Americans with the idea
that there needs to be a ceiling of uniform standards. That is, the Petitioner
sees uniformity as an end in itself, rather than the attempt by Congress
to ensure that individuals in all 50 states have some form of protection
against telemarketing abuses. The difference is that Congress acted to
enhance individuals' rights--to ensure that everyone has some shield against
telemarketing and fax marketing. The Petitioner wants to use the TCPA to
reduce individuals' rights, to convert the TCPA into a license for unwanted
junk faxing. Petitioner seeks to use "uniformity" as a means
to flatten state laws, rather than recognizing that uniformity in the context
of the TCPA was an attempt to ensure that everyone should have a floor of
protections against unwanted solicitation.

Here, the Petitioner seeks to undo years of democratic processes with a
20-page petition that omits the basic legal test established to determine
whether Congress intended to supercede state regulation. Petitioner attempts
to find preemption by bootstrapping language from other statutes. Bootstrapping
cannot demonstrate a "clear and manifest" purpose to preempt.
We therefore urge the Commission to deny Petitioner's attempt to erase hundreds
of consumer protection statutes. We urge the Commission to find that the
TCPA anticipates and accommodates supplemental state protections against
the scourge of unwanted telemarketing and junk fax marketing.

II. In Passing the TCPA, Congress Did Not Demonstrate an Intent
to Preempt State Laws

A. In order to supercede the state laws at issue, Petitioners
must demonstrate a "clear and manifest" intent by Congress to
preempt state laws

Petitioners have not met the burden of establishing a "clear
and manifest" congressional intent to preempt state anti-telemarketing
laws. While Congress may preempt state law either explicitly or implicitly,
it has done neither in the TCPA.

1. State regulation of interstate telemarketing is not expressly
preempted by the TCPA

The TCPA does not expressly preempt state anti-telemarketing laws. It
is silent on preemption of interstate telemarketing, and specifically preserves
intrastate telemarketing. Because the statute does not contain clear language
preventing states from regulating interstate telemarketing calls, state
regulation of such calls is not explicitly preempted.

2. State regulation of interstate telemarketing is not implicitly
preempted by the TCPA

While Congress may also preempt state law implicitly, it has not done so
in the TCPA. The Court has held that

[i]n the absence of an express statement by Congress that state law is
pre-empted, there are two other bases for finding pre-emption. First, when
Congress intends that a federal law occupy a given field, state law in that
field is pre-empted. Second, even if Congress has not occupied the field,
state law is nevertheless pre-empted to the extent it actually conflicts
with federal law, that is, when compliance with both state and federal law
is impossible, or when the state law stands as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.[3]

Neither of these forms of preemption, "field" or "floor"
(also referred to as "conflict"), justifies invalidation of the
state anti-telemarketing laws at issue.

a. Congress did not intend to prohibit the states from regulating
in the field of telemarketing

By enacting the TCPA, Congress did not intend to prohibit state
regulation in the field of telemarketing. To determine whether Congress
has preempted the states from regulating within the field covered by the
legislation, "[t]he [] inquiry is whether Congress, pursuant to its
power to regulate commerce … has prohibited state regulation of the particular
aspects of commerce involved in [the] case." If the field that Congress
is said to have preempted is one that has traditionally been occupied by
the states, it is presumed that "the historic police powers of the
States were not to be superceded by the Federal Act unless that was the
clear and manifest purpose of Congress."[4]

Petitioners erroneously contend that the Commission has exclusive
authority over interstate telemarketing. Petitioners start from the premise
that the Communications Act of 1934 granted the Commission jurisdiction
over "all interstate and foreign communication ."[5]
Though the Commission has jurisdiction over all interstate communication,
it does not follow that the Commission has jurisdiction over all interstate
telemarketing. Telemarketing cannot be classified as communication
alone; there is an overwhelming element of advertising or solicitation.
The telephone is merely a vehicle for delivering advertising to consumers.
Because businesses use the telephone to solicit sales, the interest in consumer
protection, an interest long protected by the states, is triggered.

Because telemarketing implicates consumer protection, an area long regulated
by the states,[6] the Commission
must begin with the assumption that state laws regulating telemarketing
were not to be preempted, unless Congress clearly intended preemption.[7] There is no evidence of congressional intent to prohibit state
laws regulating telemarketing. In fact, the evidence is just the opposite.
Congress explicitly allowed the states to regulate intrastate telemarketing,
providing that "nothing … shall preempt any State law that imposes
more restrictive intrastate requirements or regulations…"[8] Congress was silent on interstate regulations, and easily could
have inserted a single sentence in the TCPA or Junk Fax Prevention Act if
it had intended to supercede state laws.

The dicta relied upon by the Petitioner does not support a finding of preemption
with respect to the TCPA. In the first case cited by the Petitioner, the
Supreme Court held that federal law did not preempt state laws concerning
depreciation of property owned by carriers.[9]
Additionally, in National Asso. of Regulatory Utility Comm'rs v. FCC,
the court preempted a state regulation, but in that case, the regulation
adversely affected federal goals in providing a "rapid, efficient,
Nation-wide . . . communication service."[10]
Nothing about the junk fax regulations established in California and other
states impedes the rapidity of signals or their efficiency. California's
heightened junk fax regulation only limits an obnoxious and illegitimate
business practice, not the technical delivery of communications services.

Congress intended the TCPA to act as a floor, rather than a ceiling. This
approach permits states to enact stronger telemarketing regulations than
exist at the federal level. As the Court has held,

even if Congress has not occupied the field, state law is nevertheless
pre-empted to the extent it actually conflicts with federal law, that is,
when compliance with both state and federal law is impossible, or when the
state law stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.[11]

This is known as "floor" preemption – federal law acts as a floor
of protections that can be enhanced by more stringent state laws.

Congressional intent is the critical factor in preemption analysis.[12]
In interpreting a preemption clause, a court "must give effect to [its]
plain language unless there is good reason to believe Congress intended
the language to have some more restrictive meaning."[13] Though Congress did not explicitly state a purpose or an objective
in the TCPA, a number of congressional findings led to the passage of and
were included in the TCPA. Congress found:

(5) Unrestricted telemarketing … can be an intrusive invasion of privacy
…

…

(7) Over half the States now have statutes restricting various uses of
the telephone for marketing, but telemarketers can evade their prohibitions
through interstate operations; therefore, Federal law is needed to control
residential telemarketing practices.

…

(9) Individuals' privacy rights, public safety interests, and commercial
freedoms of speech and trade must be balanced in a way that protects the
privacy of individuals and permits legitimate telemarketing practices.

(10) Evidence compiled by the Congress indicates that residential telephone
subscribers consider automated or prerecorded telephone calls, regardless
of the content or the initiator of the message, to be a nuisance and an
invasion of privacy.

…

(12) Banning such automated or prerecorded telephone calls to the home,
except when the receiving party consents to receiving the call or when such
calls are necessary in an emergency situation affecting the health and safety
of the consumer, is the only effective means of protecting telephone consumers
from this nuisance and privacy invasion.[14]

Congress' findings clearly emphasize the need to protect consumers from
invasions of their privacy. Because the TCPA was passed to address this
significant need, protecting consumers' privacy was the clear purpose of
the statute. Nowhere in the findings does Congress recognize the need to
create "uniform national standards" or the like.

Petitioners' assertion that Congress' principal objective in enacting the
TCPA was "to provide a uniform workable framework" is erroneous.
First, Congress demonstrated no intent to establish uniform standards.
The word "uniform" does not appear either in the congressional
findings or the text of the TCPA. The word "national" appears
only as related to the permission granted to the Commission to establish
a national Do-Not-Call Registry. Second, Congress was less concerned about
the practices of telemarketers than it was about the privacy interests of
consumers. In only one of fifteen findings does Congress mention the need
to "permit legitimate telemarketing practices."[15] In contrast, Congress emphasizes the need
to protect consumers' right to privacy in nine of the findings.[16]

Courts in several jurisdictions have concluded that the purpose of the
TCPA was to protect consumer privacy.[17] In addition, the Eighth Circuit has confirmed
the lack of congressional intent to preempt state laws. In Van Bergen
v. State of Minnesota,[18]
the Eighth Circuit Court of Appeals decidedly ruled out preemption of state
law under the TCPA. It emphasized, "If Congress intended to preempt
other state laws, that intent could easily have been expressed as part of
the same provision."[19]
This is especially persuasive as at least eight states had anti-telemarketing
laws at the time the TCPA was enacted.[20]
Congress, being aware of the existence state anti-telemarketing laws, would
have preempted such laws if that had been its intent. Further, if Congress
had intended to create a "uniform" regulatory scheme, it would
not have expressly precluded preemption of state regulation in one area
of telemarketing – intrastate telemarketing.

Because state laws regulating interstate telemarketing and the TCPA share
the same purpose – protecting consumers from an invasion of privacy – the
state laws do not stand as obstacles to the accomplishment of congressional
objectives.

B. Petitioners cannot overcome the strong legal presumption
against preemption of state law

1. Petitioners have not overcome the strong legal presumption
against preemption of state law

The Supreme Court has repeatedly emphasized the strong legal
presumption against preemption of state law. Because petitioners have not
been able to rebut this presumption, the Commission should not invalidate
the state laws at issue.[21]
The Supreme Court has cited "the oft-repeated rule that the State,
in the absence of express action by Congress, may regulate many matters
which indirectly affect interstate commerce, but which are for the comfort
and convenience of its citizens."[22] The Court has further stated that "[o]f
the existence of such a rule there can be no question. It is settled and
illustrated by many cases."[23] In addition, the Court has emphasized that "interstate
commerce in its practical conduct has many incidents having varying degrees
of connection with it and effect upon it over which the State may have some
power."[24]

2. The presumption against preemption is especially strong in
this case, because Petitioners seek to invalidate laws related to the historical
state police power

The presumption against preemption of state law is especially strong as
related to the state police power, an area traditionally regulated by the
states.[25] The Supreme
Court has held that where "the field which Congress is said to have
pre-empted has been traditionally occupied by the states, we start with
the assumption that the historic police powers of the States were not to
be superseded by the Federal Act unless that was the clear and manifest
purpose of Congress."[26]
Consumer protection is part of the state police power,[27] and thus it enjoys the heightened presumption against preemption
of state law. The Court has stated, "Given the long history of state
common-law and statutory remedies against monopolies and unfair business
practices, it is plain that this is an area traditionally regulated by the
States."[28]

C. The Commission must interpret the TCPA in a reasonable manner;
it is unreasonable to read ceiling preemption into the TCPA

The Commission must interpret the TCPA in a reasonable manner. The Commission's
interpretation of the statute is governed by Chevronv. Natural
Resources Defense Council.[29] Under Chevron, if Congress'
intent is clear from the statute, the Commission must follow the expressed
intent of Congress. If, however, the statute is silent or ambiguous with
respect to the issue at hand, the agency must interpret the statute in a
reasonable manner. As discussed above, at best the TCPA preemption provision
is ambiguous as to whether state regulation of interstate telemarketing
is permitted.

The Commission itself has acknowledged that the preemption provision of
the TCPA is ambiguous as to whether the Commission is prohibited from preempting
state laws that regulate both intrastate and interstate calls.[30]
Further, the Commission has indicated that the provision is silent on the
issue of whether a state law that imposes more restrictive regulations on
interstate telemarketing calls may be preempted.[31]
The Commission has nevertheless indicated that "more restrictive efforts
to regulate interstate calling would almost certainly conflict with [its]
rules."[32] However, the primary justification
given for this assertion is that the Commission believes it was the "clear
intent" of Congress to "promote a uniform regulatory scheme under
which telemarketers would not be subject to multiple, conflicting regulations."[33] Again, there is no mention of such a scheme
in the text of the TCPA, nor does the statute even use the word "uniform."

The authority cited by the Commission for this "clear intent"
is a single remark of one member of Congress, Senator Larry Pressler, on
the floor of the Senate.[34]
However, read in context, the statement made by Senator Pressler during
discussion of the TCPA – "The Federal Government needs to act now on
uniform legislation to protect consumers" – merely summarizes the message
of the testimony that was received by the Senate Commerce, Science, and
Transportation Committee on S. 1410, an anti-telemarketing bill introduced
by Pressler.[35] Further, Pressler's next comments
were, "The primary purpose of [the TCPA] is to develop the necessary
ground rules for cost-effective protection of consumers from unwanted telephone
solicitations."[36] The emphasis of Senator Pressler's remarks
is clearly on the protection of consumers' privacy rights. Pressler makes
no further comment on what "uniform legislation" would entail,
and whether the notion even relates to the balance of power between the
Commission and the states.

Others have proposed that any call for uniformity does not relate to the
jurisdiction of federal and state governments, but instead relates to a
congressional mandate that the Commission and another federal agency, the
Federal Trade Commission, coordinate their efforts and design one federal
Do-Not-Call Registry. The Commission's assertion of Congress' interest
in "uniformity" is not supported by the legislative history of
the TCPA. Basing this assertion on the remarks of a single Senator is not
persuasive; reading the remarks in context reveals that this authority is
even less persuasive.

Furthermore, in the Commission's own interpretation of the TCPA, the Commission
has indicated that the objective of the TCPA is "to address a growing
number of telephone marketing calls and certain telemarketing practices
thought to be an invasion of consumer privacy and even a risk to public
safety."[37]

The Commission may act only as authorized by Congress, and it must interpret
Congress' actions in a reasonable manner. It would be unreasonable and
outside the Commission's authority to read into the TCPA a broad intent
to preempt state law.

III. State Laws Regulating Interstate Telemarketing and Fax Marketing
Calls Should Not be Preempted by Federal Law

Not only are state anti-telemarketing and junk fax laws not
legally prohibited by the TCPA, as a policy matter, such laws should not
be preempted.

Telemarketers are both deliberately and knowingly using marketing techniques
that target out-of-state residents. In targeting residents of other states,
they must comply with consumer protection laws in the call recipient's state.

Telemarketers should be held to the same standards that apply to other
direct marketers. When a company engages in other forms of direct marketing,
such as catalog sales, it is required to comply with all applicable state
laws, including differing state sales taxes, product labeling requirements,
and product bans. Telemarketers should have to comply in similar ways.

B. Consumers are best served when both state and federal officials
can work to protect them against unlawful business practices

Consumers are best protected against unlawful business practices by a combination
of federal and state laws. The federal government simply cannot accommodate
the diverse interests and needs that are served by state consumer protection
laws. For instance, in July 2005, DMNews[38] reported on a telemarketing ban implemented
by Louisiana in response to a storm.[39]
In that State, an emergency powers law permits the government to temporarily
suspend telemarketing operations during an emergency. This type of state
response to a public emergency cannot practicably be performed by the federal
government. The value of state law and the limits of federal power to respond
to such emergencies is clear.

C. The traditional role of the states in regulating privacy should
be preserved

States have a traditional role in regulating privacy that should be preserved.
There is a presumption in American law that state and local governments
are primarily responsible for matters of health and safety.[40]
Privacy is included in the category of health and safety issues, as an area
of regulation historically left to the states.[41]
Further, the Commission has recognized that "states have a long history
of regulating telemarketing practices."[42]

D. Historically, most privacy law allows states to provide greater
protections

Federal consumer protection and privacy laws, as a general matter, operate
as regulatory baselines and do not prevent states from enacting and enforcing
stronger state statutes. The Electronic Communications Privacy Act,[43]the Right to Financial Privacy Act,[44]
the Cable Communications Privacy Act,[45] the Video Privacy Protection
Act,[46] the Employee Polygraph Protection Act,[47] the Driver's Privacy Protection
Act,[48] the Health Insurance Portability
and Accountability Act,[49]
the Gramm-Leach-Bliley Act,[50] and portions of the Fair Credit Reporting Act[51] all allow states to craft protections
that exceed federal law. In each of the areas regulated by the above-referenced
privacy laws, business has continued to flourish in states that have enacted
stronger privacy protections.

Permitting the states to regulate interstate telemarketing and junk faxing
will continue to promote regulatory innovation and experimentation. As
Justice Brandeis once remarked, "It is one of the happy incidents of
the federal system that a single courageous state may, if its citizens choose,
serve as a laboratory; and try novel social and economic experiments without
risk to the rest of the country."[52]
States enjoy a unique perspective that allows them to craft innovative programs
to protect consumers. State legislators are closer to their constituents
and the entities they regulate. They are the first to see trends and problems,
and are well-suited to address new challenges and opportunities that arise
from evolving technologies and business practices. State-level policy experimentation
fosters the development of best practices.

An entire appendix to the 1977 report of the Privacy Protection Study
Commission[53] entitled
Personal Privacy in an Information Society[54]
was devoted to "Privacy Law in the States." This portion of the
report speaks strongly to the value of state privacy protection:

Through constitutional, statutory, and common law protections, and through
independent studies, the 50 States have taken steps to protect the privacy
interests of individuals in many different types of records that others
maintain about them. More often than not, actions taken by State legislatures,
and by State courts, have been more innovative and far reaching than similar
actions at the Federal level … the states have also shown an acute appreciation
of the need to balance privacy interests against other social values.[55]

The report emphasized "the central role the States can play as protectors
of personal privacy, and more broadly, individual liberty": "The
States have demonstrated that they can, and do, provide conditions for experiments
that preserve and enhance the interests of the individual in our technological,
information-dependent society."

State laws are often later adopted at the federal level. Indeed, states
have taken the lead in developing and enforcing legislative safeguards for
consumer protection and privacy. At least thirty-six states had passed
do-not-call statutes prior to implementation of the federal Do-Not-Call
Registry in 2003.[56] The Joint Petitioners' proposal is contrary
to the core principles of our federalist system. Preemption of state anti-telemarketing
laws would inhibit the development of best practices by individual states
and significantly undermine the country's traditional structure of consumer
protection.

F. State legislators and law enforcers are more accountable
to the public interest

State and local governments are more accountable than the federal government
to their constituents. As a result, it is likely that stronger protections
will emerge from state and local legislatures, and more vigorous enforcement
will be pursued by state actors. In addition, the Commission has limited
resources for enforcement; states should share this responsibility. In
the context of telemarketing, the Commission has stated that "it is
critical to combine the resources and expertise of the state and federal
governments to ensure compliance with the national do-not-call rules."[57] With limited enforcement, consumer protection
and privacy laws will have little effect.

G. Businesses are not put at a particular disadvantage by having
to comply with differing state junk fax laws

Telemarketing companies are not put at a disadvantage by having to comply
with differing state laws. Especially in the financial services and credit
reporting areas, many businesses have argued that a national ceiling of
laws is needed in order to prevent "balkanization" or a "patchwork"
of state laws. As the National Association of Attorneys General Privacy
Subcommittee has observed,

Many businesses … argue the importance of a single, federal standard by
citing the need for uniformity. They assert that a 'patchwork' of state
laws will make compliance costly and may stifle the development of markets
both on and offline. In fact, businesses have long accommodated themselves
to a range of state consumer protection statutes while maintaining a profitable
enterprise. Courts have, for years, engaged in a process of reconciling
potentially or actually conflicting laws through application of established
legal principles to various factual situations. Such a tailored response
is especially appropriate with respect to evolving technologies and new
applications of those technologies. This flexible approach accommodates
the needs of both businesses and consumers, while preserving state sovereignty
in an area where states have traditionally had a significant role.[58]

There is nothing that differentiates businesses that engage in telemarketing
from other industries that operate at the national level with varying state
laws. For instance, the insurance industry is not regulated at the federal
level and is subject to varying legal requirements in the states. Yet the
insurance industry has thrived under this system of regulation.

Further, any marketing barriers created by state laws apply equally to
those with and without an existing business relationship with registered
telephone subscribers. Just because a consumer has purchased goods or services
from a business in the past, does not mean that the consumer wishes to hear
from that business again through junk faxes. In addition, there are many
other means for businesses to contact customers with whom they have an established
relationship, including direct mail and in-store displays.[59]
The benefit to a consumer of not receiving junk faxes calls far outweighs
the cost to businesses that would like to engage in such telemarketing.
Petitioners have not demonstrated that state junk fax laws have been an
inconvenience the legitimate operations of the direct marketing industry.

H. Modern profiling technology demonstrates that compliance with
the laws of multiple jurisdictions is possible

1. Petitioners have not demonstrated that the dual federal-state
regulatory system, which has worked successfully for almost fifteen years,
is in need of change

Petitioners have not successfully made the case that preemption is now
needed. Though Petitioners argue that compliance with differing state laws
are too burdensome, they have lived under this dual federal-state regulatory
system for almost fifteen years. If this system were really so burdensome,
the telemarketing industry would have, and should have, objected to the
system long ago. The Petitioners' arguments, viewed in context of almost
fifteen years of compliance with varying state laws, appear to be motivated
more by political opportunity than technical or legal impossibility.

2. New technologies make compliance with state laws easier now
than in any time in history

New technologies make it easier for telemarketers today to comply with
differing state laws. Interstate commerce did not begin with the Internet.
Businesses have long had to comply with varying state laws as a condition
of doing business within a state. And today, with sophisticated location
technology and consumer profiling, the direct marketing industry is better
equipped than ever to comply with varying state laws. The need for ceiling
uniformity is an overvalued idea that does not account for the industry's
ability to treat different people differently – at least when there is a
profit motive involved.

The same technologies that have enabled customer profiling
and segmentation could enable compliance with different state laws. Direct
marketers speak breathlessly about their ability to "segment"
the public, that is, to treat different people differently. These companies
will go to great lengths to divide people into different groups and pitch
varying advertising messages to them. For instance, commercial data broker
Acxiom released a new customer profiling system in June 2005. As it was
described: "Personicx ANSWERS gives users more immediate access to
data for marketing planning and analysis. Personicx places each U.S. household
in one of 70 segments, or clusters, and 21 life-stage groups based on behavior
and demographic characteristics."[60] In addition, Claritas' PRIZM system has been
used to profile American consumers for decades, and currently consists of
a "62-cluster version of PRIZM and the 95-atom MicroVision system at
the ZIP+4 level."[61] These two companies categorize individuals
on issues much more nuanced than the state in which they live – these categories
concern lifestyle, income, and personal attitudes.

Direct marketers' own advertising literature shows that the industry can
even categorize people at the zip code level. In a brochure discussing
the segmentation ability of data broker Claritas, the company demonstrates
how it can easily identify "young urban professionals" across
three jurisdictions.[62] The brochure shows an analysis performed at
the zip code level of "Young Influentials," a group that reflects
"the fading glow of acquisitive yuppiedom."

Claritas' systems can locate yuppie "concentration[s] in the inner-ring
suburbs of Prince Georges County, MD, and Northern Virginia." If Claritas
can discriminate on this level based on so many factors, direct marketers
should be called upon to explain why this same technology cannot enable
compliance with state law.[63]

From a technical perspective, coding in different time of call, established
business relationship, or permission to continue laws is trivial. Markers
can be placed in the database to highlight individuals who reside in states
with stricter junk fax laws, and telemarketers could be instructed not to
initiate messages, or to send these individuals messages at specific times
or in compliance with specific rules.

The Commission should view claims for a need for uniformity with much greater
skepticism. New tools make it easier now than ever to treat people differently.
The industry should have to bear the burden of explaining how on one hand
it can give different people who live on the same block different credit
card offers, but it cannot treat people who live in different states differently
when it comes to telemarketing regulations.

I. State residents support state telemarketing laws

Many state legislatures have determined that their residents
have a strong interest in privacy and have consequently promulgated laws
regulating telemarketing and junk faxing. These states have adopted legislation
that preserves the right of those who want to receive telemarketing calls
to do so, while safeguarding the privacy interests of those consumers who
are not interested in receiving such calls. Joint Petitioners now seek
to eviscerate these statutory safeguards and to substitute their own judgment
about who should receive telemarketing calls.

State residents have grown accustomed to the protections offered
by their respective states. Many residents oppose imposition of an existing
business relationship exemption.[64]
Requiring states to follow the federal model, which includes allowing telemarketing
calls to existing customers, would eliminate the residential peace that
state residents have come to enjoy. Such a requirement would contravene
the overall goal of the Commission's Do-Not-Call Registry – protecting consumers
from the invasion of privacy resulting from telemarketing calls.

IV. Conclusion

Based on the foregoing, the Commission should expressly declare
that the TCPA does not preempt state laws regulating junk faxing.

[30] FCC Report and Order, In the Matter of Rules
and Regulations Implementing the Telephone Consumer Protection Act of
1991 50 (adopted June 26, 2003, released July 3, 2003) [hereinafter
FCC Report and Order].

[40]Hillsborough County v. Automated Med. Labs.,
471 U.S. 707, 716 (1985) (there is a "presumption that state and
local regulation of health and safety matters can constitutionally coexist
with federal regulation.").

[41]See, e.g., Hill v. Colo., 530 U.S. 703
(2000) (upholding a law protecting the privacy and autonomy of individuals
seeking medical care, as the law was intended to serve the "traditional
exercise of the States' police power to protect the health and safety
of their citizens.") (internal quotation marks omitted).

[44] 12 U.S.C. § 3401 (2005). While the Right to Financial
Privacy Act does not contain explicit provisions regarding its effect
on state law, the legislative history of the Act indicates that Congress
intended to regulate access to customer records by federal agencies and
departments only, without precluding states from regulating access of
state and local agencies to such records.